Civil Penalty Appeals Can Be Heard By The Court of Appeal

By Richmond Chambers

09 Feb 2017

In Secretary of State for the Home Department v Akbar [2017] EWCA Civ 16 (19 January 2017) the Court of Appeal has ruled that it has jurisdiction to hear appeals from the County Court concerning civil penalties imposed under the 2006 Act for employing illegal workers.

Civil Penalties

Under the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act"), financial penalties can be imposed for employers who employ workers without valid immigration status.

This is outlined in s.15:

(1) It is contrary to this section to employ an adult subject to immigration control if—

(a) he has not been granted leave to enter or remain in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom—

(i) is invalid,

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii) is subject to a condition preventing him from accepting the employment.

(2) The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.

S.17 of the 2006 Act further provides for a right of appeal, stating that:

(1) An employer to whom a penalty notice is given may appeal to the court on the ground that –

(a) he is not liable to the imposition of a penalty,

(b) he is excused payment by virtue of section 15(3), or

(c) the amount of the penalty is too high.

(2) The court may—

(a) allow the appeal and cancel the penalty,

(b) allow the appeal and reduce the penalty, or

(c) dismiss the appeal.

(3) An appeal shall be a re-hearing of the Secretary of State's decision to impose a penalty and shall be determined having regard to –

(a) the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and

(b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware);

The Instant Case

In January 2015, Mr Akbar was issued with a civil penalty for employing two persons who were not entitled to work in the United Kingdom, Babar Hussain and Aneel Saddique. As Mr Akbar had co-operated with the authorities the penalty had been reduced to £20,000. It was further stated that it would be discounted further to £14,000 if paid within 21 days.

Mr Akbar appealed to the County Court at Oldham in early March 2015. The appeal was on three main grounds, namely that:

1) Mr Hussain and Mr Saddique were both lawfully resident in the UK and allowed to work and that he could provide copies of their passport to this effect;

2) the Secretary of State had accepted that Mr Akbar had conducted document checks with the only issue being when this occurred;

3) the amount of the penalty was disproportionate.

The County Court

On 21st September the matter was heard at the County Court. Counsel for the Appellant complained that he had not received the bundles for the Secretary of State, and that Patricia Sharples, an executive officer of the Civil Penalty Compliance Unit, who he had requested attend for cross examination, was not present.

Despite the protestations of the Respondent’s counsel, who stated that he had copies of all the documents in an electronic form and could print them off within half an hour, the judge was unsympathetic. He stated that:

"So they did not serve their evidence. They say that they did not have the evidence from the applicant. They have not filed the trial bundle. They have not supplied the witness who was requested to attend. So I am afraid that is it…the appeal is allowed."

He further refused to allow the appeal:

"Effectively, it is an application for relief from sanction. There is no explanation as to why the witness is not here. There has been a catalogue of failure on the part of the respondent in this case. To simply say on, now, the second occasion before me, "Well there is no record of documentation being received," really is not good enough."

The Court of Appeal

The Secretary of State argued that the decision of the district judge was incorrect and not based on evidential proof as to why the bundles and Ms Sharples were not at court. His allowing the appeal, as well as awarding costs to Mr Akbar, was “manifestly inappropriate and unjust without considering the evidence and submissions by the Secretary of State's counsel as to what might be done”.

The Secretary of State further requested that the Court of Appeal offered guidance on whether or not the court had jurisdiction to hear the appeal concerning Civil Penalties. This had not been considered by the Court before, and the Secretary of State felt that clarity on the issue was important.

On the first issue, the Secretary of State was successful. The Court felt that the failings of the Secretary of State had been exaggerated by the Appellant. It further expressed sympathy with the judge who had a heavy list and was placed in a difficult position, but nevertheless felt that he erred in refusing to hear the Secretary of State’s evidence.

On the second, it was found that the Court of Appeal did indeed have jurisdiction. The decision in the County Court was an appealable decision. In the Civil Procedure Rules Part 52, all second appeals are referred to the Court of Appeal. Therefore, it was entirely proper for the appeal of the County Court decision to be referred to the Court of Appeal.

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